By Nik Williams
To date, three parliamentary committees have ruled on the draft Investigatory Powers Bill (IP bill) offering more than 120 recommendations necessary to ensure the bill is fit for purpose. The task of incorporating these should not be taken lightly. Yet, less than three weeks on, the Government has published the Investigatory Powers Bill. Its decision to introduce the IP Bill after such limited consideration is evident in the superficial nature of the changes in the legislation.
The Investigatory Powers Joint Committee, the Science & Technology Committee and the Intelligence and Security Committee (ISC) each identified significant changes that warranted a full and coherent rewrite of the bill. Improved privacy protections were expected (and hoped for) following a statement from the usually hawkish ISC that recommended privacy forming “an integral part of the legislation rather than an add-on.“ This recommendation has largely been ignored, leading to the IP Joint Committee member Lord Strasburger to state: “The fact that they see simply changing the name of one section to include the word ‘privacy’ as addressing the fundamental concerns about privacy protections in this bill is breathtaking.”
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The IP bill represents a revision as opposed to a redraft, defined not by thoroughness or transparency but by haste. The initial consultation process was significantly shorter than the time given to the 2012 Communications Data Bill, while being nearly twice the size; it has taken the Government less than three weeks to analyse more than 120 recommendations; and the final vote is expected at the end of April. Why rush something as important as surveillance legislation?
Mass surveillance demonstrates a clear and distinct threat to freedom of expression as evidenced by a PEN International survey of more than 700 writers. It found that one in three writers in "free" countries had avoided writing or speaking on a particular topic following the Snowden revelations. This form of self-censorship undermines the ability of writers to represent diverse and at times challenging opinions, share ideas and facilitate dialogue across cultures, backgrounds and beliefs. Legislation that reinforces this concern should not escape scrutiny at the expense of political point scoring.
Many of the capabilities in the IP bill represent not a clarification or simplification of the UK’s surveillance legislation but a significant expansion of them. The powers to hack phones and other electronic devices (equipment interference) and to store internet connection records (ICRs) have been expanded; the former power is available to selected police forces, while the latter, remaining outside the judicial "double-lock", “allow[s] police to access all web browsing records in specific crime investigations, beyond the illegal websites and communications services specified in the original draft bill”.
Alongside the inherent dangers of equipment interference and ICR retention remain ill-defined technical capability notices that give the Home Secretary vague powers to specify an obligation on an operator “if the Secretary of State considers it is reasonable to do so”. In the rewrite, this has been tightened to clarify the Government’s position on encryption, eliminating the blanket removal of end-to-end encryption, instead focusing on encryption that the providers have applied themselves or have had applied on their behalf. We have come a long way since David Cameron’s war on encryption, but perhaps not far enough; the wording of technical capability notices is broad enough to contain a wide variety of requests that may only become apparent once the law is in effect.
This could perhaps be justified were it a proven fact that mass surveillance is an effective tool to combat terrorism but that evidence does not seem to be forthcoming. In evidence to the IP Joint Committee, former National Security Agency technical director William Binney said: “This approach costs lives, and has cost lives in Britain because it inundates analysts with too much data. It is 99 per cent% useless.” Undermining Theresa May’s favourite metaphor, "if you are searching for the needle in the haystack, you have to have a haystack”, his comments seem to underline the point that, to find the needle in the haystack, you do not simply add more hay.
This revised legislation undermines the UK’s commitment to civil liberties and a robust, open and deliberate legislative process. We echo Shami Chakrabarti’s words: “[The] Government must return to the drawing board and give this vital, complex task appropriate time. Anything else would show dangerous contempt for parliament, democracy and our country’s security.”
Nik Williams is a campaigner with Scottish PEN.